Volo v. Barrilleaux

Filed 3/5/08 Volo v. Barrilleaux CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Plaintiff Patricia Volo sued defendant Stephen Barilleaux to recover for injuries she sustained to her back and neck allegedly from an auto accident caused by defendant. Evidence at trial indicated that plaintiff achieved significant healing and relief from pain by the first year after the accident. From that time, however, her condition deteriorated, eventually culminating in her undergoing two major back surgeries more than five years after the accident. Plaintiff theorized that the surgeries were necessary due to injuries from the accident. Expert testimony from the defense, authorized by the court as an augmentation of defendants original expert witness disclosure after defendant hired new counsel, indicated the surgeries were the result of plaintiffs practice of running long distances on a regular basis. The jury apparently agreed with the defendants expert testimony and rejected plaintiffs theory. It awarded plaintiff past economic damages of only $3,680, an amount roughly equal to the cost of her first year of medical treatment following the accident.

Plaintiff appeals from the judgment, claiming the trial court committed prejudicial error by (1) allowing defendant to augment his expert witness disclosure; (2) precluding plaintiff from attacking defendants expert witness based on the witnesss late entry; (3) precluding plaintiffs treating surgeon from testifying as to the reasonableness of plaintiffs surgical hospital charges; (4) precluding a witness from testifying as to amounts his firm actually paid on plaintiffs behalf for her surgical hospital charges; (5) preventing a witness from identifying himself as a retired judge; and (6) making numerous evidentiary errors that allegedly left the jurors believing the trial court was predisposed against plaintiff. We conclude the trial court committed no prejudicial error and affirm the judgment.

FACTS

Plaintiff was the victim of a car accident on October 16, 1999. She was 42 years old at the time of the accident. At about 4:00 p.m. that day, defendant ran a red light and hit plaintiffs car on the drivers side above the rear wheel. Plaintiff was wearing a seat belt. She exited her car on her own power, and had no pain or discomfort at the scene. She chose not to call for the police or for an ambulance.

The parties exchanged information, and then defendant followed plaintiff as she drove her car a ways to make sure the vehicle was capable of being driven. The cars rim and axle were bent about 10 degrees, but plaintiff was able to drive home. The damage to plaintiffs car exceeded its value.

At that time, plaintiff was working as a waitress at the now-closed Virgas Restaurant in Sacramento. That night, after the accident, plaintiff reported to work. She felt shaken up, but she performed her duties as usual.

The next day, however, plaintiffs arms started to feel weak and her neck hurt. Despite the pain, she continued her normal activities, including working at the restaurant and running for exercise. Plaintiff had enjoyed running since the 1980s. She regularly ran four to five miles a day four or five days a week.

Nine days after the accident, plaintiff met with her primary care physician, Dr. Beckett, due to neck pain, pain across her shoulders, and weakness in her arms. Dr. Beckett prescribed medication and referred plaintiff to physical therapy.

Plaintiffs course of physical therapy went on for several months. During that time, she was encouraged to continue running, and she did. She also kept working at Virgas, but she would work in pain and be sore when she finished a shift.

In April 2000, at Dr. Becketts referral, plaintiff began receiving treatment from a chiropractor, Dr. Fausnaught. After one visit, plaintiff told Dr. Fausnaught she was 50 percent improved. After seven visits, plaintiff told the doctor she was 80 percent improved. She maintained this degree of improvement for several months, and she continued to run about three to four miles a day five days a week. At trial, plaintiff claimed the relief from Dr. Fausnaughts treatments would last only for a day or two. His treatments never restored her to 100 percent.

Plaintiff stopped seeing Dr. Fausnaught in October 2000, one year after the accident. Dr. Fausnaught called plaintiff occasionally to learn how she was feeling. Plaintiff told him she was doing all right, but she was too busy at work to continue chiropractic care.

Plaintiff continued working at the restaurant until it closed in January 2001. She began working as a waitress at Zinfandel Grill, but she did not do well there because of pain and the pains effect on her emotionally. Meanwhile, she did catering for people she knew well, including her former employer, Julie Virga.

She also started work answering phones for the California State Employees Association (CSEA). From working at the switchboard, plaintiff moved to the accounting department where she made voucher entries into a computer. She experienced more neck pain then, so CSEA provided ergonomic accommodations.

In August and September 2001, plaintiff received treatment for neck pain from another chiropractor, Dr. Coleman. She stopped these treatments after Dr. Coleman told her there was nothing more she could do for her.

Dr. Beckett then referred plaintiff to Dr. Mann, a pain management specialist. Plaintiff continued to run during this time and after meeting with Dr. Mann. She claimed running was her sanity. It helped her cope by masking the pain.

In May 2002, some two and one-half years after the accident, Dr. Beckett referred plaintiff to Dr. Thomas Mowery, an anesthesiologist specializing in treating chronic pain. He noted a 2001 CT scan of plaintiff showed mild bulging at disc C-6/7, moderate broad-based spondylosis at C-5/6, and some narrowing and protrusion at C-3/4. To provide relief, he injected a steroid into her disc. Plaintiff reported that this injection gave her two weeks of almost complete relief from her neck pain, shoulder pain, and interscapular pain.

Dr. Mowery repeated this procedure in July 2002. However, in October, plaintiff reported she did not get sustained relief and her symptoms seemed to be getting worse. To attempt to discover the source of the pain, Dr. Mowery in November and again in January of 2003 injected steroid into the facet joints surrounding the discs. He concluded the predominance of the pain was coming from the facets at C-4/5 and C-5/6, and some additional pain from C-3/4. Plaintiff received some relief from these measures.

In March 2003, Dr. Mowery performed a radiofrequency procedure that acts, in effect, like a small spot-weld to put a nerve permanently to sleep. It is a very painful procedure requiring pain medication for a week or longer. Plaintiff received only some temporary relief from the procedure.

Dr. Mowery believed that plaintiffs neck pain was a result of the automobile crash.

In November 2003, four years after the accident, plaintiff met with Dr. Pasquale Montesano, a board certified orthopedic surgeon specializing in spinal disorders and the former chief of spine surgery at Mercy General Hospital in Sacramento. Dr. Montesano concluded that plaintiff had a herniated disc at C-5/6 in her cervical spine, which he thought was the area responsible for her pain. He told plaintiff that since the conservative care she had already received was not working, her only options were to live with the pain or undergo reconstructive surgery. He advised plaintiff to avoid impact-loading activity, such as running.

In June 2004, plaintiff decided to undertake the reconstructive surgery. Dr. Montesano performed the surgery, a cervical discectomy, in November 2004. The surgery involved removing the disc and fusing the spine at C-5/6 using a bone graft from plaintiffs hip and a metal plate.

Initially, plaintiff experienced a significant reduction in pain after the surgery. As she tried to resume her activities, however, her pain level began to increase. Additional tests revealed that the C-4/5 disc was also herniated. Plaintiffs options were the same as before.

She chose to have a second cervical discectomy at C-4/5. Dr. Montesano performed this surgery in June 2005, one month before trial in this case.

At trial, Dr. Montesano testified that the auto accident caused the C-5/6 disc to fail and, to a lesser extent, damaged the C-4/5 disc. He stated that plaintiff also suffered low back pain, mid back pain, and hip bursitis due to the accident. He believed it was more likely than not that over time, plaintiffs C-6/7 disc will break down, and she will require another spinal surgery.

Dr. Howard Tung, an expert witness called by the defense, is a board certified neurosurgeon. He is an associate clinical professor at the University of California, San Diego, Medical School. He also maintains a private practice in San Diego. He testified after the court allowed defendant to augment his expert witness disclosure to include Dr. Tung.

After reviewing plaintiffs treatment records and examining her four months before trial, Dr. Tung concluded the accident caused plaintiff to suffer a mild cervical straining injury, or, in other words, a muscular strain. He believed plaintiffs cervical strain subsided by July 2000, after receiving treatment from Dr. Fausnaught.

Dr. Tung opined that the neck pain which plaintiff experienced thereafter was not caused by the accident, but was instead caused by spondylosis. Spondylosis is an all encompassing term of just degenerative changes that will occur in the spine over time. It is not caused by an accident or sudden trauma, but rather is a degenerative process that occurs as people age.

Dr. Tung noted that plaintiff had other aggravating factors that would suggest her pain was caused by spondylosis. These factors included running four to five miles four to five times a week, waitressing, and working two jobs. Running on a regular basis is a jarring type of activity, he said, and all areas of the spine can be affected. Sports activities are well associated with spine -- degenerative spine conditions.

Dr. Tung stated that none of plaintiffs MRIs, CT scans and x-rays ever showed a herniated disc. Also, a herniated disc would usually cause immediate pain in the neck and arm. None of plaintiffs medical records referenced arm pain for at least a year after the accident. Moreover, plaintiff continued running for four years after the accident. Dr. Tung stated this was inconsistent with a disc herniation. Someone with a disc herniation, he said, wouldnt be able to run four, five miles. Its a very painful syndrome.

Dr. Louis Valli, initially disclosed by defendant but called by plaintiff as an adverse witness, is a board certified orthopedic surgeon practicing in Sacramento. He reviewed plaintiffs medical records, and he also examined plaintiff 15 months after the accident. He concluded the auto accident caused plaintiff to suffer a classic neck strain/whiplash musculoligamentous injury. Recovering from this injury can span from days to months to even a year. Plaintiffs pain, he noted, subsided within one year after the accident.

Consistent with Dr. Tungs testimony, Dr. Valli stated the neck pain leading to plaintiffs surgeries was not caused by the auto accident. The accident would not be expected to result in all of the changes she had in her spine. He opined that plaintiff did not have a herniated disc. She had extensive degeneration, collapsed discs, ostephytes, and arthritic changes in her cervical spine. She also had degeneration in the mid and low back. As a result, it was not unreasonable to think the neck would experience the same changes.

The jury awarded plaintiff $48,680, calculated as follows: $3,680 for past economic loss, $45,000 in past non-economic loss, and nothing for future damages.

We will provide additional facts as necessary.

DISCUSSION

I

Augmenting Defendants Expert Witness Disclosure

Plaintiff claims the trial court abused its discretion by allowing defendant to augment his expert witness disclosure shortly before trial to include Dr. Tung. She asserts defendant did not establish any facts showing the augmentation satisfied statutory criteria, and that defendant sought augmentation in violation of an earlier stipulation that foreclosed additional experts. We conclude the trial court did not abuse its discretion in granting defendants request.

A. Additional background information

In May 2004, trial was set for August 16, 2004. In June of that year, the parties exchanged expert witness disclosures. Defendant listed Dr. Valli as his retained expert on the issues of causation and damages.

By letter dated July 1, 2004, plaintiffs counsel informed defendants counsel that plaintiff was currently scheduling a cervical fusion with Dr. Montesano. In his deposition of July 15, 2004, Dr. Montesano stated that when he met with plaintiff on June 16, 2004, plaintiff stated she thought she wanted to proceed with the surgery. So it was really on that date, 6/16/2004, the doctor said, that she made her decision to have surgery. And we are just waiting to hear back from her as to when she wants to have it.

On the same day as Dr. Montesanos deposition, the parties entered into a stipulation to accommodate the surgery. That surgery, the stipulation stated, is currently being scheduled and her treating surgeon needs time in order to be able to testify regarding Plaintiffs long term prognosis. Thus, the parties stipulated to vacate the trial date.

The parties also agreed that no additional experts would be disclosed. The stipulation reads: The closure of discovery will be in accordance with the new trial date. There will be no new disclosure of experts and the disclosures previously made will be the only experts available.

The stipulation was filed with the trial court on July 21. On the same date, the trial court ordered the trial to be continued and placed it on the trial setting calendar for December 6, 2004. Plaintiff had her surgery in November 2004. At the December trial setting conference, trial was set for March 7, 2005.

In February 2005, defendant obtained new legal counsel. On February 23, 2005, new defense counsel moved for an order to continue the trial date, reopen discovery to permit a neurosurgical examination of plaintiff, and augment defendants expert witness disclosure to add a neurosurgeon, a neuroradiologist, and a pain management specialist. Defense counsel claimed the order was justified because he had not had an opportunity to depose plaintiff since the surgery and her surgery was conducted after expert designations. To allow plaintiff to proceed to trial following this surgery, he argued, without defendant having had the opportunity to conduct a neurosurgical Independent Medical Examination or retain experts for the purpose of evaluating plaintiffs surgery as a causally related event from the automobile accident of October 16, 1999 will result in extreme prejudice to defendant.

In a supporting declaration, defense counsel stated that Plaintiff [was] treated for soft tissue injuries only for over one year post accident. When plaintiffs deposition was taken her medical specials were approximately $4,000. She continued to run four to five miles a day. She had no loss of earnings. Now, her medical specials are alleged to be approximately $150,000. She has alleged to have been debilitated to the extent that she can no longer be employed. Plaintiffs demand has increased from $23,000 to $900,000.

Plaintiff opposed the motion, arguing that defendant had already stipulated not to introduce any additional experts. Plaintiff also stated that defendant had an adequate opportunity after the surgery and prior to trial to request a follow-up medical evaluation by Dr. Valli, and he never made such a request. Plaintiff claimed that defendant had no cause to introduce a new expert with a different medical specialty so close to trial. In her opinion, defendants motions were simply an attempt to get the Court to assist the trial strategy of a new attorney brought in at the eleventh hour to try the case, and should be denied.

In reply, defense counsel argued that plaintiffs expert, Dr. Montesano, was deposed in July 2004. However, at that time, the surgery had not been performed and Dr. Montesano failed to produce his file at the deposition despite a request to do so. At a second deposition on February 25, 2005, Dr. Montesano again did not produce his file. Also, the witness had set aside only one hour for the deposition, a fact unknown to defense counsel at that time.

Replying to these points, plaintiffs counsel stated Dr. Montesano had been paid for only one hour and had other depositions to attend that day. Counsel also stated Dr. Montesano volunteered to be deposed on the following day, a Saturday, and to produce any documents at that time. However, defense counsel had refused to fly back to Sacramento to finish the deposition or have local counsel finish it on a Saturday. Plaintiffs counsel also stated that as of March 3, defense counsel had all of Dr. Montesanos records.

On March 3, defendant filed a motion under Code of Civil Procedure section 473 for relief from the stipulation.^[1] This motion was to be heard at the same time as his other pending motions. Defendant stated that Dr. Valli was an orthopedist who did not perform spine surgery. He argued that because plaintiffs surgery was not performed until after the expert designation cutoff, it was in the interest of justice to relieve defendant from the stipulation and allow a new medical expert experienced in spine surgery to examine plaintiff.

On March 11, 2005, the trial court denied defendants motion for relief under section 473, but it tentatively granted his motion to augment his expert disclosure list. The court denied the motion for relief because section 473 did not apply. That statute provides relief from an order, and the courts July 2004 order continuing trial made no mention of the stipulation prohibiting new expert disclosure. It also denied the motion because section 473 requires relief to be sought within six months of the order, and this motion was brought more than six months after the stipulation was entered.

Ruling on the motion to augment the expert disclosure under former section 2034, subdivision (k), the court determined plaintiff would not be prejudiced, and that defendant would not in the exercise of reasonable diligence have determined to call the new expert. Defendant would not have called the new witness, the court stated, due to mistake, inadvertence, excusable neglect, and/or the lateness of the surgery (Nov., 04), resulting in the apparent increased seriousness of the injury, of which the disclosed expert, Dr. Valli, apparently had insufficient knowledge or expertise.

The court also noted its ruling was based in part upon the apparent difficulties defendant encountered in attempting to depose Dr. Montesano, and upon a recent request by plaintiff to add Dr. Fausnaught to her witness list as a percipient witness. The court conditioned its granting of defendants motion to augment on defendant proving he satisfied the notice requirements imposed under former section 2034, subdivision (k).

The next day, March 12, defendant served a supplemental designation of expert witnesses that listed Dr. Tung as an expert. Defendant subsequently withdrew his request to augment his list with a neuroradiologist and a pain management specialist.

On March 14, the trial court formally granted defendants motion to augment for the reasons stated in its earlier ruling. It also concluded defendant had shown that the earlier July 2004 deposition of Dr. Montesano had failed to give him adequate notice of needing to call Dr. Tung as a witness, and that defendant sought leave to add Dr. Tung as an expert promptly after deciding to retain him.

The court continued trial to July 6, 2005. Defendant subsequently paid $10,000 to plaintiff to cover the financial losses of two of plaintiffs witnesses who had cleared their calendars to testify in March. Defendant also paid the cost of plaintiff taking Dr. Tungs deposition.

Following return of the verdict, plaintiff moved for a new trial, based in part on the courts granting defendants motion to augment his expert witness disclosure. Plaintiff argued that defendant failed to show either that he was acting in reasonable diligence when he did not disclose Dr. Tung originally, or that his failure to disclose Dr. Tung resulted from mistake, inadvertence, surprise or excusable neglect.

The trial court denied plaintiffs motion for new trial. After reciting the facts leading up to the motion to augment, the court stated: Under the changing circumstances of the case and Plaintiffs claim, it could not be said that Defendant should have disclosed an expert who would be competent and prepared to address the Plaintiffs new injuries and surgery before she had her surgery, or that the time taken by Defendant to retain an expert and seek to augment after the surgery in that respect was dilatory.

B. Analysis

Before we analyze the ruling on the motion to augment, we must address the parties stipulation not to introduce any additional expert witnesses. The trial court was bound by this stipulation unless the agreement was contrary to law, court rule, or policy, or if and until the court set aside the stipulation for good cause. (Salazar v. Upland Police Dept. (2004) 116 Cal.App.4th 934, 942-948; County of Sacramento v. Workers Comp. Appeals Bd. (2000) 77 Cal.App.4th 1114, 1119-1121; Robinson v. Workers Comp. Appeals Bd. (1987) 194 Cal.App.3d 784, 790 (Robinson).) Defendant does not challenge the stipulations validity.

Thus, the stipulation precluded the trial court from granting the motion to augment unless a party could obtain relief from the stipulation for good cause. Defendant sought relief from the stipulation under section 473, but the trial court correctly denied his request. That ruling, however, does not end the matter.

A trial courts authority to set aside a stipulation for good cause rests within the courts equitable powers. [T]he equitable power of a court to set aside a stipulation exists independent of section 473 and is not limited to a showing of extrinsic fraud or extrinsic mistake. (In re Marriage of Jacobs (1982) 128 Cal.App.3d 273, 283, fn. 3.)

Because the stipulation prevented disclosing new experts, the motion to augment the expert list in effect served as an application to the courts equitable jurisdiction for relief from the stipulation. This is particularly so because the standard for granting relief from the stipulation mirrored the requirements for obtaining leave to augment the expert witness list. Both standards require a showing of mistake, inadvertence, surprise, excusable neglect, or changed circumstances, and both allow the request to be made at any time under exceptional circumstances.

The standard for determining good cause for relief from a stipulation is relatively broad. [W]here a stipulation has been entered into through inadvertence, excusable neglect, fraud, mistake of fact or law, where the facts stipulated have changed or there has been a change in the underlying conditions that could not have been anticipated, or where special circumstances exist rendering it unjust to enforce the stipulation, a court may exercise its sound discretion and set aside the stipulation. [Citations.] (Robinson, supra, 194 Cal.App.3d at p. 791.)

Although no specific limitations period applies to an application for relief from a stipulation, some degree of promptness is required. (L.A. City Sch. Dist. v. Landier Inv. Co. (1960) 177 Cal.App.2d 744, 751.)

Leave to augment an expert witness disclosure is granted on the same factors. Former section 2034, subdivision (k), established the requirements for the court to grant defendant leave to augment his expert witness disclosure.^[2] The court was required to grant leave to augment only if the court determined that:

(1) Defendant either (a) would not in the exercise of reasonable diligence have determined to call Dr. Tung; or (b) he failed to decide to call Dr. Tung due to mistake, inadvertence, surprise, or excusable neglect;

(2) After taking into account the extent to which plaintiff relied on defendants original list, plaintiff would not be prejudiced; and

(3) Defendant sought leave to augment promptly after deciding to call Dr. Tung, and he promptly served plaintiff with a copy of the proposed expert declaration. (Former 2034, subd. (k).)^[3]

The motion to augment is to be made sufficiently before the close of discovery to allow the opposing party to depose the new expert, but the court may permit the motion to be made at a later time under exceptional circumstances. (Former 2034, subd. (k).)

Because both motions require the court to make virtually the same analysis, and because both motions can be made at any time under exceptional circumstances, we view defendants motion to augment the expert list as also seeking relief from the parties stipulation. We assume the trial court did the same.

A trial courts decision to grant relief from the failure to designate an expert witness is addressed to the sound discretion of the trial court and will not be disturbed on appeal absent a showing of manifest abuse of that discretion. (Dickison v. Howen (1990) 220 Cal.App.3d 1471, 1476.) The same standard of review applies to a courts decision granting relief from a stipulation. (Robinson, supra, 194 Cal.App.3d at p. 791.)

Plaintiff claims the trial court abused its discretion in granting the motion to augment because defendant failed to introduce any evidence showing the motion satisfied the requirements of former section 2034. We disagree.

First, defendant showed he would not have disclosed Dr. Tung in the exercise of reasonable diligence when he served his original disclosure. Plaintiff served her witness disclosure on June 22, 2004, and defendant served his witness disclosure on June 25, 2004. Defendant did not receive any notice of plaintiffs surgery until July 1, 2004, and at Dr. Montesanos deposition on July 15, 2004. Defendant could not have known with any degree of diligence when he disclosed his expert of a need to retain another expert due to plaintiffs then-unscheduled surgery. Having made this showing, defendant was not obligated to show mistake, inadvertence, surprise, or excusable neglect.

Second, defendant showed plaintiff would not be prejudiced by the motion. In this context, prejudice can occur when the opposing party, due to its reliance on the previous list of experts, is not prepared and cannot be prepared in time for trial and the new experts testimony. (Dickison v. Howen, supra, 220 Cal.App.3d at p. 1479.) Here, upon granting the motion to augment, the trial court again continued trial for approximately four months. This gave plaintiff ample time to depose Dr. Tung, which she did, and to prepare for trial, which she also did. Moreover, defendant paid plaintiff to compensate her for financial losses caused by the continuance as well as the cost of her deposing Dr. Tung.

Third, defendant made a sufficient showing that he sought leave to augment promptly after deciding to call Dr. Tung, and that exceptional circumstances justified him bringing his motion after the first discovery cutoff. Following the surgery in November 2004, defendant deposed plaintiff to inquire about her surgery and post-surgical course, and also served written discovery on her. Thereafter, defendant retained new counsel, and counsel quickly filed the motion to augment in February 2005. The trial court stated that under these facts, it could not be said that the time taken by defendant to retain an expert and to seek approval to augment after the surgery was dilatory. The court did not abuse its discretion in reaching that decision.

Plaintiff argues defendant was dilatory in not seeking to augment at least as early as July 15, 2004, when defendant learned from Dr. Montesano that plaintiff would undergo spine fusion surgery. Plaintiffs argument is not without some merit. Indeed, defendant agreed to the stipulation not to disclose any additional experts after learning of plaintiffs decision to have the surgery. Approximately seven months after entering into the stipulation, and three months after the surgery was performed, defendant obtained new legal counsel. One week later, defendant sought leave to add a new expert.

In his moving papers, defendant claimed a new expert was needed because he had not had an opportunity to conduct a physical examination of plaintiff since the surgery, and the discovery cutoff prevented an examination. This claim was not entirely correct. Under the stipulation, the parties agreed to continue the discovery cutoff to a date based on the new trial date. In December, trial was set for March 7, 2005, resulting in a discovery cutoff of February 21, 2005, two days before new defense counsel moved to augment. Yet, as plaintiff reminds us, at no time between the surgery in November and the discovery cutoff in February did defense counsel request another examination of plaintiff.

Plaintiff also alleges there was no evidence that defendants original expert, Dr. Valli, was unqualified to reexamine plaintiff and render an opinion that took into account the subsequent surgery. Defendant disagreed, declaring in a declaration in support of his section 473 motion that Dr. Valli was an orthopedist retained to evaluate plaintiffs soft tissue injuries. Counsel stated Dr. Valli does not do spine surgery. Counsel raised the same point at oral argument. However, Dr. Valli, in his deposition taken after the surgery, stated he still felt competent to render opinions in this case. He did not direct defense counsel to find an expert that had done spine surgery or who was a specialist in the cervical spine.

Plaintiff also faults the trial court for relying in part on the disputes surrounding the timing of Dr. Montesanos deposition and his production of records. These facts are not criteria listed in former section 2034 as grounds for granting a motion to augment.^[4]

Despite these points, we cannot conclude the trial court acted arbitrarily or outside the scope of its broad discretion when it granted the motion to augment. Although defendant knew of the surgery as early as July 2004, he would not have been expected to name a new expert witness at that point to discuss the effects and significance of a surgery that had yet to be performed. He also had not received the performing surgeons records concerning the surgery, despite requesting it, and did not receive them until after filing the motion to augment. A period of four months passed from when the surgery was performed until defendant sought leave to augment. During that time, defendant took plaintiffs deposition and served written discovery upon her. It would have been reasonable for the trial court to conclude the information derived from this discovery led to defendant seeking to augment his expert disclosure. And, if Dr. Valli did not do spine surgery, as defense counsel declared under oath, a reasonable attorney would search for an expert familiar with the procedure performed on plaintiff.

Considering all of these circumstances, we cannot conclude the trial court abused its discretion when it granted defendants request to augment his expert witness disclosure and effectively relieved defendant from the terms of the parties stipulation.

II

Scope of Allowable Cross-Examination of Dr. Tung

Plaintiff claims the trial court erroneously prohibited her from attacking Dr. Tungs credibility. Specifically, she faults the court for precluding her from eliciting from the doctor that (1) he was added to defendants list of experts before he met and examined plaintiff, and (2) he was first contacted by defense counsel some two months after defense counsel filed the motion to augment. We conclude the trial court did not prevent plaintiff from assailing Dr. Tungs credibility.

A. Additional background information

As already discussed, defendant filed his motion to augment on February 23, 2005. This motion did not identify any particular expert he wished to add to his list. On March 12, 2005, defendant noticed his intent to call Dr. Tung. At trial, Dr. Tung testified he was initially contacted about this case somewhere around April of [2005], but he later stated he examined plaintiff on March 17, 2005.

Before trial, defendant filed an in limine motion seeking to preclude plaintiff, counsel, and witnesses from discussing the fact that defendant had attempted to obtain additional medical experts. At the commencement of trial, defendant withdrew this motion. Plaintiff, however, commented that she should have the right to cross-examine Dr. Tung on the basis of bias and the fact he was not brought in until after the original trial date.

The trial court stated the timing of Dr. Tungs engagement was not pertinent to a showing of bias and had no bearing on the case. It noted plaintiff could question Dr. Tung on such matters as if he has done work for defense counsels firm, how often he testified for plaintiffs and defendants, when he examined plaintiff, when he saw her medical records, and the like. However, the court had spent significant time on deciding defendants motion to augment and had placed its findings granting that motion on the record. I think, the court stated, to go behind that or beyond that and explain to the jury well, wink, wink, you know, hes just shown up, and we all know why, abuses that process. The court did allow plaintiff to revisit this issue upon taking Dr. Tungs deposition.

During trial, plaintiffs counsel cross-examined Dr. Tung about his late involvement in the case:

Q. As far as this case is concerned, you got involved in this case four months ago, true?

A. I believe sometime in March, yes.

Q. About four months ago?

A. About four months ago, thats fair. [] . . . [] 

Q. . . . You understand that [plaintiff] had been injured and had five years of her life go by before you ever got involved in the case, true?

A. Yes.

Q. She had surgery before you got involved in the case?

A. In November of 04, yes.

Q. When you got involved in this case, [defense counsel] called you, true?

A. Yes.

Plaintiff cross-examined Dr. Tung about his litigation experience as an expert witness. Dr. Tung stated he performed about 20 independent medical evaluations each year for plaintiffs, and about the same number each year for defendants.

Plaintiff also cross-examined Dr. Tung about his prior involvement with defendants attorney. Dr. Tung stated he had seen defense counsel only five times: once at a dinner, the second at a conference, and the other three occasions were associated with this case.

In closing argument, plaintiffs counsel questioned Dr. Tungs credibility:

Dr. Valli gets hired in 2001 by the defense to come get involved and provide the defense an opinion. . . . [] . . . [Dr. Valli] said I will defer to Dr. Montesano on any need for surgery. [] . . . []

Dr. Tung is hired four months before this trial, after the other doctor came in and said, gosh, I would defer to Dr. Montesano. Hes the treating physician, he knows what hes doing, its his decision.

The inference from that is why would you not want to go to trial, I guess, with Dr. Valli? Because he provided those opinions, and now you got to go get somebody else, and the defense had to go all the way to Southern California -- San Diego -- to find a doctor who would testify in this trial that the surgeries and the pain [plaintiff] has experienced for five years after the collision [were] not related. I think thats telling in and of itself. And those are things you can consider.

In a rebuttal closing argument, plaintiffs counsel continued: I didnt go all the way to San Diego to hire a doctor. . . . [] . . . [] All I did was put on her treating . . . physicians who actually treated her and helped her and took care of her, and they came in and told you the truth. . . . Four months ago some guy gets hired to come up here all the way from Southern California.

B. Analysis

Plaintiff claims the trial court erred by not allowing her to cross-examine Dr. Tung on the timing of his retention. Specifically, she asserts the jury should have learned that defendant sought to add Dr. Tung to his expert disclosure before Dr. Tung met and examined plaintiff, allegedly showing that Dr. Tungs opinion was a foregone conclusion based on this timing.

Plaintiff also claims the court erred by not allowing her the opportunity to point out that defendant put Dr. Tung forward as a potential expert witness before he contacted Dr. Tung. Plaintiff claims that with this point, she would have argued defendant proposed Dr. Tung in this manner because defendant knew Dr. Tung was a favorable witness without even asking him.

We disagree with both of plaintiffs points. As to plaintiffs first point, the jury would have gained nothing by knowing defendant sought to add Dr. Tung before Dr. Tung had examined plaintiff. This is the norm, as a party must identify the examiner before it either demands an examination in a personal injury case or seeks one by leave of court. (Former 2032, subd. (c)(2), (d); Stats. 1992, ch. 615,  6, p. 2741.)

Moreover, the facts presented to the jury showed that Dr. Tung did in fact not meet with plaintiff until after defendant filed his motion to augment and after defendant named Dr. Tung as an expert. Plaintiff was free to argue this point, the trial courts ruling notwithstanding.

As to plaintiffs second point, there is no evidence defendant named Dr. Tung as an expert before he contacted the doctor. Instead, the evidence shows that Dr. Tung had agreed to testify at trial in this action no later than March 12, 2005, the date of defendants augmented disclosure.

The court did not abuse its discretion or limit plaintiffs ability to assail Dr. Tungs credibility by precluding plaintiff from cross-examining Dr. Tung on the timing of his retention.

III

Preclusion of Testimony on Reasonableness of Hospital Billings

Plaintiff claims the trial court committed prejudicial error when it precluded Dr. Montesano from testifying as to the reasonableness of hospitalization billings. Defendant does not address whether error occurred. Rather, he argues there was no prejudice. Assuming for the sake of argument that error occurred, we conclude the error was not prejudicial.

A. Additional background information

Plaintiff was prepared to present evidence that she incurred hospital billings for her two surgeries in the amount of $159,500. In her expert witness disclosure, she named six physicians, including Dr. Montesano, as Non-retained Treating Health Care Providers. The disclosure stated these witnesses could be called to testify concerning, among other matters, issues of the reasonableness of medical expenses incurred and what future medical expenses are reasonably certain.

In an in limine motion and during trial, defendant moved to exclude testimony by Dr. Montesano as to the reasonableness of plaintiffs hospitalization charges on the basis that Dr. Montesano had not been prepared and ready to testify on that topic at his deposition.

The court held an Evidence Code section 402 hearing outside the jurys presence concerning Dr. Montesanos training, expertise, and experience in hospital bills and billings. Dr. Montesano stated he did not recall how many days plaintiff spent in the hospital for her first surgery, and did not recall if she went home the same day or stayed one or two nights. He knew she did not stay longer than three or four days.

An excerpt from Dr. Montesanos March 9, 2005, deposition was read into the record. In it, Dr. Montesano testified that the normal costs for the hospitalization estimate for plaintiffs first surgery ranged from $60,000 to $100,000, even if plaintiff had been hospitalized for only one day. Those are the bills that I have seen in the past. But I dont have those in front of me right now. Asked if he held himself out as an expert in hospital billing practices, Dr. Montesano responded, I review billing records; but Im not a hospital biller, no.

Dr. Montesano stated that he would not at his deposition have had any familiarity with a particular line item charge in the hospital bill unless defense counsel told him what it was. I couldnt give you something from memory; but if you told me what it was, I could give you an opinion as to whether the charges were appropriate or not.

Dr. Montesano stated he had never sat on any committees deciding what is reasonable and necessary for a hospital charge, but, he said, I just know what they usually charge. He said he had examined probably hundreds of hospital bills prior to this case, including bills involving cervical spine surgery.

Defense counsel admitted that during Dr. Montesanos deposition, he never asked the doctor the open-ended question of what opinions the doctor would provide at trial. Counsel believed, however, that he had asked sufficient questions on hospital billings to establish that Dr. Montesano was not qualified to address that issue. Since Dr. Montesano did not even know how many days plaintiff stayed in the hospital, counsel argued he was not required to ask follow-up questions concerning the reasonableness of plaintiffs hospital bills.

Continuing with the Evidence Code section 402 hearing, Dr. Montesano stated he had been an orthopedic spine surgeon for approximately 20 years, and he performed more than 300 surgeries a year. He routinely discusses hospital charges with his patients and provides them with estimates of the charges. He later confirms with the hospital to see if his estimate was correct. In this matter, Dr. Montesano gave plaintiff before her first surgery a prognostication of what he thought her hospital fees would be, based upon his experience with the hospitals.

Dr. Montesano has testified in approximately 50 cases in trial and 500 in deposition, and in each one he reviewed hospital bills. He believes he is competent to opine on the reasonableness of hospital expenses, and has previously qualified as an expert on that subject in California courtrooms, including Sacramento County. He has compared hospital charges for surgeries he performs at the Sutter, Mercy, and UC Davis facilities.

As part of this litigation, plaintiffs counsel provided copies of plaintiffs hospital bills to Dr. Montesano and asked him to review the charges. Dr. Montesano complied with counsels request prior to his March deposition. He also had the billings available to him at his deposition. He did not recall being asked at his deposition to comment on the reasonableness of plaintiffs hospital charges.

The trial court granted defendants motion to preclude Dr. Montesano from testifying on the reasonableness of plaintiffs hospital charges. The doctors responses to the questions in his deposition were insufficient to qualify for the requirements of [former section] 2034. The court stated the most telling point is the question about what were [plaintiffs] costs for the hospitalization and response to that was the normal costs for hospitalization which was some figure tells me that the doctor did not have the answer to that question. [] And if you dont have the costs of the hospitalization then I dont see how the expert can be qualified or can be in a position or may be qualified, as long as the day is long; but to talk about the reasonableness of a cost, one would assumedly need to know the actual costs. [] . . . [] But when the doctor is asked for the costs and he doesnt know the costs, but rather gives a range over time of 30 to 60 to $100,000, that does not tell me that that expert witness appeared ready, willing, and able to talk about the subject of the matter about which he was designated.

By special verdict, the jury awarded plaintiff $3,680 for past economic loss, including medical expenses.

B. Analysis

Assuming for purposes of argument that the trial court erred in precluding Dr. Montesanos testimony, we conclude plaintiff suffered no prejudicial impact from the error. The jury awarded plaintiff only $3,680 in past medical expenses, even though there was admitted evidence showing her past medical expenses (not including hospitalization expenses) exceeded at least $105,000. The actual award is only $593 more than the medical expenses plaintiff incurred during the first year after the accident, when she saw Dr. Beckett, underwent physical therapy, and received chiropractic treatment from Dr. Fausnaught. As the trial court concluded on plaintiffs motion for a new trial, the verdict indicates the jury rejected plaintiffs claim that the accident led to the two surgeries some five years later. Thus, even if the court would have admitted Dr. Montesanos testimony on the reasonableness of hospital bills, it is improbable the jury would have compensated plaintiff for those amounts.

The trial court did not abuse its discretion in precluding the testimony.

IV

Preclusion of Testimony on Payment of Hospital Billings

Independent of the error asserted in the preceding argument, plaintiff claims the trial court committed prejudicial error when it precluded Joel Clapick of MedFin Manager from testifying as to the amounts his firm actually paid to the hospital on behalf of plaintiff. The court erred, but we conclude the error was not prejudicial.

Dr. Montesano testified that the accident caused the disc injury necessitating both of plaintiffs surgeries. Clapick was prepared to testify that his company, pursuant to an agreement with plaintiff, funded the hospitalizations subject to plaintiff reimbursing his company the amounts billed by the medical providers regardless of the trials outcome. The trial court forbade Clapick from testifying as to the amount his firm paid for plaintiffs hospitalization costs, but it allowed Clapick to testify as to other medical costs it paid on plaintiffs behalf.

As plaintiff notes, testimony as to amounts paid for hospital expenses constitute some evidence of reasonable value, and in the absence of a showing to the contrary, such evidence must be held to be sufficient [citations]. (Rogers v. Kabakoff (1947) 81 Cal.App.2d 487, 491.) The trial court erred in precluding Clapicks testimony, as evidence of what plaintiff owed Clapick in this instance was admissible to prove the reasonableness of the charges she incurred. (See Katiuzhinsky v. Perry (2007) 152 Cal.App.4th 1288, 1295-1296.)

However, for the reason mentioned above, the error was not prejudicial. Even if the evidence had been admitted, the jurors would not have compensated plaintiff for these expenses because they rejected Dr. Montesanos opinion that the accident necessitated the surgeries.

Plaintiff claims otherwise, noting the trial court instructed the jury in a manner that indicated the hospital billings were not connected to the collision. Plaintiff reads too much into the courts comment. Specifically, the court instructed Clapick in the jurys presence that it had considered the medical billings, it had approved for testimony certain of them, and not approved certain of them, and that Clapick was to abide by the courts determination when he testified as to the medical expenses his firm had paid on behalf of plaintiff.

The courts comment did not indicate the court had determined the surgeries were not caused by the accident. Rather, the comment arose from the courts prior ruling that Dr. Montesano had not qualified as an expert to testify as to the reasonableness of the hospital billings. The court explained this point during Clapicks voir dire examination: Well, theres been no testimony by Dr. Montesano that the Sutter bills were either reasonably growing out of an injury here or were reasonably necessary for an injury she presented with. [] And the reason that testimony didnt come into our case is because I have said now for about the 28th time he was insufficiently prepared to answer those questions when asked and presented at deposition for his expert deposition.

Because evidence of significant medical expenses was admitted and rejected by the jury, it remains more likely than not that the jury would not have compensated plaintiff for her hospital expenses had Clapicks testimony been admitted.

V

Precluding Witness from Identifying Himself as a Retired Judge

Plaintiff faults the trial court for precluding witness Michael J. Virga from identifying himself as a retired superior court judge and from stating he referred plaintiff to Dr. Montesano based upon his observing the doctor testify in a trial over which Judge Virga had presided. Plaintiff claims the court abused its discretion in finding the proposed testimony to be prejudicial under Evidence Code section 352 because the probative value was to support the reputation of Dr. Montesano (attacked by [defendant] as someone heavily involved in litigation and heavily involved with clients of [plaintiffs] counsel) with the encomia of a retired jurist as opposed to just some guy who happened to be the father of [plaintiffs] employers at Virgas Restaurant.

The trial court did not abuse its discretion. It concluded that undue prejudice could result from a former judge, identified as such, giving testimony on behalf of someone. As it was, the trial court allowed Judge Virga to testify that he referred Dr. Montesano to plaintiff because he had heard Dr. Montesano speak and had been highly impressed. The jury fully heard that Michael J. Virga, the father of Plaintiffs employer and a trusted father-figure, was very impressed with Dr. Montesanos medical expertise and that he had told the Plaintiff of such. There was no abuse of discretion.

VI

Various Evidentiary Rulings

Plaintiff challenges 10 different evidentiary rulings by the court she claims denied her a fair trial by creating an impression with the jury that the court disfavored plaintiffs action. We review each instance to determine if the trial court erred in its ruling, and if so, whether the error constituted a miscarriage of justice, individually or cumulatively when considered with the other rulings. We conclude there were no errors committed.

A. Dr. Tungs knowledge of supporting research

On cross-examination of Dr. Tung, the following occurred:

Q. (By Mr. Wood [plaintiffs counsel]) No. My question is, Do you recall me asking you at your deposition if you had any research or literature that supports the contention that running causes neck pain?

A. [Dr. Tung] And I think I stated that theres no research supporting that or disproving it.

Q. Well, you couldnt find any research cause I asked you to bring research with you to your deposition. Do you remember that?

MR. SCHECHTER [defense counsel]: Your Honor, wait a second. May we approach sidebar? He is not at a task of doing things for Mr. Wood.

THE COURT: Well, first of all, I would like to move on beyond the deposition. And just ask him straight away has he ever looked up research on the issue of whether running causes spondylosis? Is that the nature of your inquiry, Mr. Wood?

MR. WOOD: My question is, Is there any research that supports that that he has been able to find?

MR. SCHECHTER: The question first has to be laid, has he looked?

THE COURT: Thats where Im going. I mean the fact he has never found something has to be proceeded by the question whether he has ever looked for something. [] . . . []
. . . You cant say you didnt find something on the discovery of metal by the Egyptians if you werent looking for that. I dont know if the Egyptians discovered metal. They probably did. Thats the best I can do. [] . . . []

Q [MR. WOOD:] Do you recall me asking at your deposition if you have any literature that you are aware of that says running four to five miles a day would cause neck pain?

A. Well, Ive not looked for any, and I dont know of any.

Plaintiff contends the trial courts comments indicate its belief that her attorneys question was not pertinent. In fact, the focus of counsels question was not pertinent. His focus was on what he asked at the doctors deposition, which was not relevant to the case. The court was trying to get counsel to move beyond the deposition and establish whether the witness had any background information on which he based his opinion. Counsel never did.

B. Rebutting Dr. Tungs opinion on plaintiffs reduced future quality of life

During redirect of Dr. Tung, the following occurred:

Q. [Defense counsel] . . . Please tell us based on everything youve reviewed the first time she has been advised that she may never run again? Before surgery or after?

A. [Dr. Tung] I dont know. I think it was after the surgery.

Q. I will tell you Dr. Montesano took the stand and testified he does not believe she will ever run again?

A. I think its that.

Q. Would you say that her quality of life was significantly different and less after the surgeries than before based on your review of all records?

A. Well, based on -- if that is true, then yeah, I think her quality of life would be less.

The next question came from plaintiffs counsel on recross-examination:

Q. [Plaintiffs counsel] What kind of accommodations were made for [plaintiff] at California State Employee Association for her neck before surgery?

A. [Dr. Tung] Before this last --

MR. SCHECHTER [defense counsel]: This goes beyond the scope of redirect.

THE COURT: Yeah, thats a scope objection. Ill sustain that.

MR. WOOD: Her quality of life and changes leading up to the surgery is what was just brought up on cross.

MR. SCHECHTER: Specifically running, Your Honor, only running?

THE COURT: No we were talking about a pretty narrow aspect. The running thing.

MR. WOOD: The changes in her life before surgery was just brought up.

THE COURT: Well, I know it was. Well, he started up by saying who or when told or not to run anymore, and he couldnt answer that, so Mr. Schechter answered it. And then he asked him, Does that affect her life? And he said, Yes. So, Im going to sustain the objection.

Plaintiff claims the court abused its discretion in sustaining the objection. The court did not. The scope of questioning concerned whether plaintiff suffered a reduced quality of life from not being able to continue running. Dr. Tung based his opinion on counsels assertion that plaintiff would never run again. We see no connection between that opinion and a question on what accommodations plaintiff received from an employer in a job that almost certainly did not require plaintiff to run.

C. Julie Virgas knowledge of plaintiffs work history

On direct examination of Julie Virga, plaintiffs former employer at Virgas Restaurant, plaintiffs counsel asked the witness what plaintiff did for employment after the witness closed her restaurant. Defense counsel objected that the witnesss response would be hearsay, and it would also be cumulative as plaintiff was going to testify at trial. The court sustained the hearsay objection. Counsel next asked the witness if she ever saw plaintiff go to work someplace else, and the court sustained defense counsels cumulative objection.

Plaintiff claims the court erred, as the question about what plaintiff did after the restaurant